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Beyond Litigation: Case Studies in Water Rights Disputes
Craig Anthony (Tony) Arnold and Leigh A. Jewell, Editors
Washington, DC: Environmental Law Institute, 2002
250 pp., $24.95, paper
ISBN 1-58576-032-3

Water in the West is a touchstone of environmental causes. And it is likely to be one of the most important issues of the twenty-first century. In the West, the prior appropriation, beneficial use, and public trust water doctrines are facing increasing challenges from ever-growing demands for a finite resource. States must engage in a delicate balancing act in their efforts to reconcile multiple collisions of interests--rural v. urban, community v. government, preservation v. consumption. Western water issues are the subject of Beyond Litigation: Case Studies in Water Rights Disputes.

Beyond Litigation is a compilation of case studies written by law students. Its contents might be of particular interest to New Mexicans, since two of the five case studies presented focus on New Mexico disputes--in Northern New Mexico, the Ensenada Land and Water Association Sleeper litigation of the 1980s, and the Pecos River Compact between the states of New Mexico and Texas. Also, the two California case studies of Mono Lake and the Salton Sea include dimensions with which New Mexico is indirectly involved through the Colorado River Compact. Even the remaining study on the impact of the Big Horn river adjudication on the Wind River Indian Tribes, contains elements of interest due to its focus on the nature of tribal water rights.

The book aspires to focus on issues where litigation alone could not resolve the dispute, and in many ways served only to heighten the problem and highlight the need for new and creative solutions. Unfortunately, this bright idea doesn't live up to its billing. At its best, the book provides an acceptable primer on the inherent complexities involved in water rights that move disputes beyond the scope of ordinary litigation. But these mediocre articles could definitely use some editorial work for quality, clarity, and a bit of basic grammar.

The book includes an introduction, but could really use a conclusion that would draw together the material presented and suggest the actual lessons learned. Readers may be left with the perception of an entanglement of problems, but without any real sense of purpose or direction. The Sleeper litigation case study, for example, includes a brief and confusing section on the complex issues of environmental justice as the basis for community decision-making, that turns into an argument for regionalism. It is a tenuous choice of foundation given the current legal construction of environmental justice. The idea offers only an over-simplification of one potential meaning of the "public welfare," a concept equally as vaguely defined. And it offers nothing in the way of application to the other case studies presented.

Shortly before his death in an accident in 1988, Mono Lake Committee founder David Gaines wrote in a newsletter: "The birds and animals, trees and grasses, rocks, water and wind are our allies. They waken our senses, rouse our passions, renew our spirits and fill us with vision, courage and joy . . . . We are Mono Lake." We are also the Salton Sea, the Pecos, Big Horn, and Rio Brazos Rivers. We need to begin to view our water resources in a more comprehensive setting, beyond the individual commodities addressed in litigation and administrative adjudication. These are the important, if not well articulated, principles for which this book opens the door.

-- Kristin Linkugel

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